Excerpt:civil procedure code (act v of 1908), section 109, clause (c) - 'order,' meaning of--interlocutory orders, whether included. - .....to doubt that in a proper case leave to appeal from an interlocutory order may be given under that clause and clause 40 of the letters patent. in support of that view the judgment of mookerjee and beachcroft, jj., in damra coal co. v. benares bank 28 ind. cas. 569 : 31 c.l.j. 281 may be cited, though i understand that in the result, the appeal, for which leave was given, was not prosecuted.33. the question, then, is whether this is a proper case for such leave regard being had to the observations of their lordships by the mouth of lord hobhouse in benarsi pershad's case 28 i.a. 11 : 5 c.w.n. 193 : 23 a. 227 : 11 m.l.j. 56 : 3 bom. l.r. 154 : 7 sar. p.c.j. 825 (p.c.), and by the mouth of lord buckmaster in radhakrishna ayyar's case 60 ind. cas. 85 : 25 c.w.n. 630 : 19 a.l.j. 161 : 40.....

Judgment:

Lancelot Sanderson, C.J.

1. This is an application by one Shiva Prosad Singh for leave to appeal to His Majesty in Council.

2. The suit related to an impartible estate of one Raja Sangram Singh. He left three sons. Durga Prosad Singh was the descendant of the first son. He died on the 7th of March 1916, leaving three widows who are the plaintiffs in the suit. Siva Prosad, the applicant, is the descendant of another son of Raj a Sangram Singh, He is the defendant in the suit. After the death' of Durga Prosad, the defendant entered into possession of the estate. There was an installation ceremony held in March 1916 and the defendant's name was registered as the proprietor of the estate under the Land Registration Act. Durga Prosad bad left a Will dealing with certain jewellery and money, the Will containing, among other matters, a provision that each of the widows was to receive Rs. 300 a month by way of maintenance. No Probate was taken out of the Will. But in August 1916 certain arrangements by means of certain documents were made for the purposed of carrying out the Will: and, there being sorne money in the Bank of Bengal, a suit was, brought by Siva Prosad against the Bank and against the widows, in which a decree was made in favour of the present defendant who was the plaintiff in that suit, in August 1917.

3. The present suit was brought in March, 1919 in the Alipur Court, and the main claims were, first, to recover the impartible estate: secondly, to recover certain moveable and immoveable properties which were alleged to be the self-acquired properties of Durga Prosad; thirdly, for a declaration that the Will was not a genuine one; fourthly, that the decree in the suit was not binding upon the plaintiffs, and, fifthly, that the documents, to which T have referred, whereby the parties agreed to give effect to the Will, were not binding on the plaintiffs.

4. The total value of the properties involved in this suit is said to be about a crore of rupees.

5. A long time was occupied in the disposal of the suit: and eventually the learned Subordinate Judge gave his judgment on the 3rd of November 1921. He found that the present applicant, the defendant in the suit, was the rightful owner of the impartible estate. He, found in favour of the plaintiffs as regards the properties which were alleged to have been self-acquired by Durga Prosad, and he valued them at about 13 lacs. It was said by the learned Counsel for the applicant, and I think not deputed by the other side, that the impartible 'estate as to which the defendant succeeded was of the value of about 86 lacs and the plaintiffs success related to property which was of the value of about 13 lacs.

6. In November 1921 the plaintiffs filed an appeal to this Court and they applied for and obtained a Rule calling upon the defendant to show cause why an order should not be made in the terms of the petition and an interim injunction was granted to restrain the defendant, his servants and agents from,-

(1) alienating or otherwise dealing with any portion of the property in suit pending the final determination of this suit;

(2) realising and appropriating any money in respect of the above mentioned money-lending transactions;

(3) interfering with the petitioners' possession of their said three storied building at Jharia or any portion thereof or of any fixtures therein.

7. In December of the same year (1921) the plaintiffs applied for execution of their decree by the arrest and imprisonment of the defendant.

8. On the 4th of January 1922, the present applicant, Siva Prosad Singh, appealed in respect of the decree in so far as it decreed the plaintiffs' suit. On the 5th of January the applicant obtained a Rule which was issued by my learned brothers, Mr. Justice Woodroffe and Mr. Justice Ghose, calling upon the plaintiff to show cause why execution of the decree mentioned in the petition should not be stayed pending the disposal of the appeal on such terms as to this Court might seem fit. The interim injunction and Rule to which I have previously referred, were granted by my learned brothers, Mr. Justice Mookerjee and Mr. Justice Cuming. Both these Rules were heard by my learned brothers, Mr. Justice Mookerjee and Mr. Justice Cuming, on the 20th of January. On the 9th of February the order from which it is desired to appeal was made, The order runs as fellows:

We have heard learned Counsel on both sides with reference to the various affidavits and counter-affidavits and have further ascertained the history of the case by an examination of the judgment under appeal. We have come to the conclusion that, for the present, the following directions should be given and we order accordingly:

(1) That the defendant do deposit in this Court within 4 weeks from this date, a sum of three and a half lacs of rupees which the plaintiffs will be entitled to withdraw from Court, in whole or in part, in partial satisfaction of the decree, upon furnishing security to the satisfaction of this Court for such amount as may be withdrawn by them from time to time.

(2) That, with a view to expedite the disposal of both the appeals, the paper-book, be prepared in the office of the Court (under: such special arrangements as may be necessary) and that the entire cost of the preparation of the paper-book be paid into Court by the defendant in the first instance (within a time to be fixed later), the ultimate allocation of the costs to be determined by this Court at the time of the final disposal of the appeal.

(3) That within six weeks from this date the defendant do furnish security (other than the impartible Raj) to the satisfaction of this Court to the extent of: five lacs of rupees for the due performance 1 of such decree as may ultimately be made in the suit.

(4) That defendant do make over posssesion of premises No. 239, Lower Circular Road, to the plaintiffs and also of one of the Motor Cars decreed in their favour and the defendant be restrained from interfering with the possession of the plaintiffs of the three storied building at Jharia or any portion thereof, or of any fixtures therein.

(5) That the injunction already issued be maintained so as to restrain the defendant from making alienations or entering into agreements to grant leases, or dealing or otherwise interfering with the estate, except with the express sanction of the Court previously obtained after due notice to the plaintiffs.

(6) That the defendant do forthwith deposit in this Court, to the credit of the suit, all such sums as may from time to time be realised by him out of monies invested in the various money-lending businesses.

We have not considered the question of the appointment of a Receiver which was mentioned incidentally at the hearing. The order now made will in no way debar the consideration of that question hereafter or of such other questions as may arise during the pendenay of the appeal.

The cost of these Rules will be costs in the appeals. The hearing fee is assessed at ten gold mohurs in each Rule,

9. As I have said, the order deals with the matters raised by the two Rules and it is in respect of three matters mainly that this application has been made: first with regard to the injunction, secondly, with regard to the oraer for the deposit by the defendant of 31/2lacs of rupees in Court, and thirdly, with regard to the security, other than the impartible estate, which the defendant is called upon to give to the extent of 5 lacs of rupees for the performance of the decree which the Court might think right to make upon the hearing of the appeal.

10. It was urged that the learned Judges had no jurisdiction to make the order in the terms in which it stands. Further, it was urged that grave and irreparable injury would be caused by the order to the defendant unless the application for leave to appeal were granted; and, thirdly, it was urged that reason of the restrictions imposed upon the defendant it was not possible for the defendant to raise sufficient money even to enable him to protect his, rights on the hearing of the appeal. It was urged that an order ought to be made under Section 109(c) of the Code of Civil Procedure that this is a fit case for appeal to His Majesty in Council under that clause.

11. With regard to the power of the Court to deal with applications such as this under that clause, it is desirable to refer to three cases. The first to which I refer is the latest in point of date, and it is the case of Radhakrishna Ayyar v. Swaminatha Ayyar 60 Ind. Cas. 85 : 25 C.W.N. 630 : 19 A.L.J. 161 : 40 M.L.J. 229 : 13 L.W. 321 : (1921) M.W.N. 119 : 33 C.L.J. 277 : 44 M. 293 : 23 Bom. L.R. 718 : 29 M.L.T. 418 : 48 I.A. 31 (P.C.). In that case Lord Buckmaster in referring to Section 109 Clause (c) said, 'This does not cover the whole grounds of appeal, because it is plain that there may be certain cases in which it is impossible to define in money value the exact character of the dispute, there are questions as, for example, those relating to religious rights and ceremonies, to caste and family rights or such matters as the reduction of the capital of companies as well as questions of wide public importance in which the subject-matter in dispute cannot be reduced into actual terms of money.' It was urged however, that that definition of the eases which are contemplated by Section 109(c) was not exhaustive and that that was clear' from the judgment of Lord Hobhouse in the case of Banarsi Pershad v. Kashi Krishen Narain 28 I.A. 11 : 5 C.W.N. 193 : 23 A. 227 : 11 M.L.J. 56 : 3 Bom. L.R. 154 : 7 Sar. P.C.J. 82 (P.C.) because, whereas Lord Buck master had referred to questions of 'wide public importance in which the subject-matter in dispute cannot be reduced into actual terms of money,' Lord Hobhouse in his judgment in the case, which I have just mentioned, referred to matters of 'private importance' as well as to matters of 'public importance.' The passage in the judgment is at page 13 dealing with the corresponding Section 600 of the Code of Civil Procedure which was then win force and it is this: 'That is clearly intended to meet special cases such, for example, as those in which the point in dispute is not measurable by money, though It may be of great public or private importance. To certify that a case is of that kind, though it is left entirely in the discretion of the Court is a judicial process which could not be performed without special exercise of that discretion evinced by the fitting certificate.' And the last case to which, I think, it is necessary to refer, is the judgment delivered by my learned brother Mr. Justice Mookerjee sitting with Mr. Justice Beachcroft in the case of Damra Coal Co. v. Benares Bank 28 Ind. Cas. 569 : 21 C.L.J. 281. In that case the petitioner had instituted a suit for a declaration that a mortgage decree obtained by the opposite party was fraudulent and for a permanent injunction to restrain the execution of that decree. The Subordinate Judge during the pendency of the suit had granted a temporary injunction against the execution of the decree which the petitioner was alleging was fraudulent. On appeal, however, to the High Court that order was reversed and the application for temporary injunction was refused. Thereupon the petitioner asked for leave to appeal to the Privy Council against the refusal of the temporary injunction. The learned Judges, after coming to the conclusion that the order was not as final order within the meaning of Section 109(a), dealt' with the application, under Section 109(c). My learned brother Mr. Justice Mookerjee is there reported to have said: 'It has been argued in the next place that this is a fit case for a certificate under Section 109, Clause (c). It is to be observed that, whereas in Clause (a), the expression 'final order' is used, in Clause (c) the term 'order' is used, and, consequently, on the discussion of the second point, no question arises whether the order in question is final or not. It has been pointed out to us that if leave is refused and the order of this Court is allowed to stand, grave injury might be done to the petitioners and that needless complications might occur much to their detriment:' and acting in pursuance of the powers given by the Code under Section 109(c), the learned Judges came to the conclusion that that was a fit case for appeal to His Majesty in Council.

12. I agree with the learned Judge's observation as to the meaning of the word 'order' referred to in Clause (c) of Section 109. The 'order' there mentioned is obviously intended to be not merely a 'final-order' and the expression is wide enough to include an order such as that which the learned Judges were discussing in that 'case and that which we are now considering in this case. Obviously, it has a different meaning to the words 'final order' which are to be found in Clause (a).

13. In my judgment, we have jurisdiction to certify that this is a fit case for appeal and the question arises whether, in our opinion, we ought to certify that this is a case which is fit for appeal to His Majesty in Council under Clause (c) of Section 109.

14. The injunction is in very wide terms. It was argued that it goes beyond what is contemplated by Order XXXIX, Rule 1. It was urged that it would prevent the defendant from entering into an agreement for a lease which was to come into force upon the disposal of the appeal and in the event of the defendant succeeding in the appeal. It was further urged that though the plaintiffs, who had tailed in their claim to the impartible estate, could raise money on mortgage of their interest in the estate, if they could find any one to advance on such security, yet the defendant, who had succeeded in the lower Appellate Court as regards the claim to the impartible estate and had been held to be the owner of the estate, was prevented from raising money on the estate even for the purpose of fighting the appeal or for meeting his liabilities to the plaintiffs under the decree, without the express sanction of the Court previously obtained after notice to the other side. It was further urged that the effect of the order was that, although the defendant had succeeded as to the main question in the suit to the extent of property valued at about 86lacs of rupees, he has been placed under such stringent restrictions as regards that property and at the same time has been ordered to deposit in Court 31/2lacs of rupees and to find security to the extent of 5 lacs of rupees, apart from the property as to which he has succeeded, that grave injury has been done to him.

15. A further point was made that, apart from the question of the injunction, there was no jurisdiction to impose such conditions, as are contained in the order in question, except as conditions for stay of execution and that there is no stay of execution comprised in the order. The Rule which was granted by my learned brothers Mr. Justice Woodroffe and Mr. Justice B.B. Ghose was in these terms: Set a Rule issue calling upon the opposite party to show cause why execution of the decree mentioned in the petition should not be stayed pending the disposal of the appeal on such terms as to this Court may seem fit. Pending the hearing of the Rule, let further proceedings in the matter be stayed. The Rule is returnable within one month from this date unless the plaintiffs opposite party apply for an earlier hearing of the Rule. Let this order be sent down at once.' It appears, therefore, that the Rule was confined to the question whether execution should be stayed on such terms as to the Court might seem fit. The learned Counsel for the plaintiffs, when asked what was the position with regard to the Rule, having regard to the order which was made by the learned Judges, at first said that' the Rule was still in abeyance and then, later, when his attention was drawn to the order as regards costs, tie learned Counsel contended that it must be taken that execution had bean stayed on the terms mentioned in the order. He contended that that must have been the intention of the learned Judges and that in any event, there was liberty to apply which would give the defendant an opportunity of protecting himself if any attempt to levy execution was made. On the other hand, it was urged by the learned Counsel for the defendant that execution had not in fact been stayed, that the Rule had not been made absolute on terms and that it was uncertain what would be the consequences to the defendant if he did not obey the orders made by the Court, that the orders were not conditional and it was even possible that he might be committed for contempt of Court if he failed to carry out any of such orders.

16. I am most unwilling to grant leave to appeal to the Judicial Committee in respect of an interlocutory order, such as this, which does not determine finally any of the rights of the parties as to the matters in dispute in the suit, but in my judgment in this case there is a question of real Importance involved. It is, clearly of great importance to the defendant, who has alleged that grave injury will be done to him thereby, and that, although he has won in the first Court on the main issue, he is so hampered by the terms of the order that he cannot carry out the terms thereof and that it will be difficult for him to provide even sufficient funds to enable him to protect his interests in the appeal. The question of a stay of execution must obviously depend upon the facts of each case and the order to be made in respect of an application in respect thereof is largely a matter of discretion. In my judgment, however, this is not merely a question of stay of execution, as I have already pointed out, but there is involved a matter of real importance, namely, as to whether the Court has jurisdiction to make such an order as that which is involved in this case. We are not sitting here as a Court of Appeal and it must be clearly understood that I am not expressing any opinion as to the merits of the controversy between the parties as regards this matter. My judgment is confined to the conclusion that the case does involve a matter of such importance that, in my judgment, we ought to certify that the case is a fit one for appeal to His Majesty in Council under Section 109(c).

17. We grant a stay of execution of the order of February 9th 1922, pending this appeal, to the Privy Council, upon the undertaking given by Mr. Das on behalf of the defendant to carry out all the directions in the older except those contained in Clauses (1) and (3). until the hearing of this appeal by the Judicial Committee and upon the condition that the defendant deposits in Court rupees seven thousand and five hundred, which the plaintiffs will be entitled to take out upon giving security to the satisfaction of the Court for such amount as may be withdrawn. With regard to the Rs. 7,500, or the security in respect thereof, the parties will be subject to any direction that may be made by the Judicial Committee of the Privy Council. Mr. S.R. Das has given an undertaking on behalf of his client to prosecute the appeal with every despatch and to apply to the Judicial Committee for the hearing of the appeal at as early a date as may be convenient.

18. We give a direction to the office to expedite this appeal with a view to the transcript of the record being despatched to England by the Mail on Thursday the 6th of April.

19. The preparation of the paper-book in the High Court Appeal will proceed in the ordinary course.

20. This order will also govern application for leave to appeal to His Majesty in Council No. 3 of 1922.

Richardson, J.

21. I agree.

22. Leave is desired to appeal to England from an order of this Court in its Appellate Jurisdiction made on two applications one preferred by the plaintiffs in the suit, the three Ranis, widows of the late Raja of. Jheria, and the other by the defendant in the suit, cousin of the late Raja, who is in present possession of the Raj and whom the widows are seeking to oust. The applicant for leave to appeal is the defendant.

23. The value of the whole property in dispute is said to be one crore of rupees. In the Trial Court the plaintiffs have succeeded in respect of property said to be worth about thirteen lacs and the defendant has succeeded in respect of the remainder, said to be worth over eighty-six lacs. The Sub-ordinate Judge's judgment was delivered on the 3rd November 1921, but the decree was not sighed till the 6th December 1921.

24. Both parties have appealed. The plaintiffs' appeal was filed on the 15th November 1921 before the decree was signed but no doubt a copy of the decree was supplied before the expiry of the time limited for appealing. On the same date the plaintiffs applied for a Rule upon the defendant to show cause why he, his servants and agents should not be restrained from doing certain things. A Rule was granted in terms of the petition with an interim injunction.

25. The defendant filed his appeal on the 4th January 1922 and on the 5th January, the defendant obtained from another Bench of the High Court a Rule upon the plaintiffs to show cause why execution of so much of the decree as was in their favour should not be stayed on terms, pending the hearing of the appeals.

26. On the 20th January the two Rules came on for hearing before Mookerjee and Cuming JJ., the learned Judges who issued the first Rule, and the order in question was made on the 9th February.

27. By this order the learned Judges gave certain directions, among others, 'that the injunction already issued be maintained so as to restrain the defendant from making alienations or entering into agreements to grant leases, or dealing or otherwise interfering with the estate, except with the express sanction of the Court previously obtained after due notice to the plaintiffs.'

28. Though exception is taken to the directions a a whole, a principal grievance is made of this direction in the nature of a temporary injunction to enure during the pendency of the appeals to this Court.

29. Rightly or wrongly, it is urged for the defendant that the injunction Is ultra vires in so far as it restricts him from entering into agreements for leases or sales, that the injunction unduly ties his hands and prevents him from complying with other directions requiring him to deposit money in Court and furnish security, that the order is so expressed that failure on his part to comply with any direction may expose him to attachment and imprisonment for contempt, that the order gives more to the plaintiffs than they asked for, that the order has the appearance of being framed on the supposition that the decree of the Court below is erroneous so far as the defendant is concerned, that no undertaking was given by or exacted from the plaintiffs to indemnify the defendant for any damage he might suffer by reason of the injunction, and that the liberty which the learned Judges gave to the parties to apply will not meet the difficulty in which the defendant is placed. It is contended that the defendant is entitled to the decision of their lordships on these matters.

30. As to the time during which the injunction is likely to be in force, we were told that the trial of the suit occupied five months, that twenty-four thousand documents were exhibited and that the judgment of the learned Subordinate Judge covers more than sixty folio pages in print. There may, therefore, be a considerable interval before the appeals to this Court are ready for hearing.

31. I am extremely 10th to grant leave to appeal in respect of matters of merely temporary importance which have no bearing at all on the ultimate legal rights of the parties matters which I feel might be better settled in India by some give and take on both sides and by the avoidance of that passionate hostility which litigation is apt to engender. The moves and counter-moves so animated are the mere dust and ashes of controversy. They may multiply costs, and delay the final decision but are of no avail when the merits come in the end to be considered in the dry light of reason.

32. All we have to determine, however, is whether leave to appeal should be given under Clause (c) of Section 109 of the Civil Procedure Code. I see no reason to doubt that in a proper case leave to appeal from an interlocutory order may be given under that clause and Clause 40 of the Letters Patent. In support of that view the judgment of Mookerjee and Beachcroft, JJ., in Damra Coal Co. v. Benares Bank 28 Ind. Cas. 569 : 31 C.L.J. 281 may be cited, though I understand that in the result, the appeal, for which leave was given, was not prosecuted.

33. The question, then, is whether this is a proper case for such leave regard being had to the observations of their Lordships by the mouth of Lord Hobhouse in Benarsi Pershad's case 28 I.A. 11 : 5 C.W.N. 193 : 23 A. 227 : 11 M.L.J. 56 : 3 Bom. L.R. 154 : 7 Sar. P.C.J. 825 (P.C.), and by the mouth of Lord Buckmaster in Radhakrishna Ayyar's case 60 Ind. Cas. 85 : 25 C.W.N. 630 : 19 A.L.J. 161 : 40 M.L.J. 229 : 13 L.W. 321 : (1921) M.W.N. 119 : 33 C.L.J. 277 : 44 M. 293 : 23 Bom. L.R. 718 : 29 M.L.T. 418 : 48 I.A. 31 (P.C.). In those cases, their Lordships were dealing with appeals from final decrees which are ordinarily governed by Clauses (a) and (b) of Section 109, read with section no, and which come within Clause (c) of Section 109 only in exceptional cases of the nature which their lordships specify. Interlocutory orders, such as that before us, stand on a different footing. In the first place, they are in the nature of original orders not appealable to any Court in this country and, in the second place, whatever the property or risk at stake may be, Clause (c) of Section 109, is the only clause which applies to them. It may, I think, be fairly said that the observations of their Lordships were made without direct reference to interlocutory orders, though in dealing with such orders, we may still be guided by the spirit of those observations.

34. At that point, it has to be conceded that even interlocutory orders may sometimes involve questions of principle or practice of much general importance, and that the present case, involving as it does very large interests, is of an entirely exceptional character.

35. In the circumstances, I agree with the learned Chief Justice that leave to appeal should be given under Clause (c) of Section 109,